Written By: Tom Sheffield
A recent case making its way through the lower federal courts could effect a significant change in the voting rights landscape. The Voting Rights Act of 1965 had a profoundly important impact on the United States, and the results of this case could dramatically change its ability to continue that legacy.
Background on Section 2 of the Voting Rights Act (“VRA”)
Section 2 of the VRA bars any voting practice or procedure which “results in denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” And for decades, private litigants have brought suits under Section 2. However, the Eighth Circuit recently heard a case in which it may hold that Section 2 does not provide for a private right of action. If that is how the court rules, only the Department of Justice, not private citizens, would be allowed to sue.
Section 2, in particular, gained more importance after the Supreme Court’s decision in Shelby County, which invalidated the coverage formula that determined which jurisdictions had to preclear any changes in their voting law with the Department of Justice before those laws could take effect. Preclearance was extremely effective at preventing voter suppression, but when the coverage formula was struck down, Section 5 was rendered inoperative, and litigants increasingly relied on Section 2.
No language in Section 2 expressly states that private litigants have the right to sue; it only explicitly gives the Attorney General that right. Though for decades, Section 2 suits were brought by private litigants without controversy. However, in a 2021 Section 2 case called Brnovich v. DNC, Justice Neil Gorsuch authored a concurrence asserting that, while the Supreme Court’s “cases have assumed—without deciding—that the [VRA] furnishes an implied cause of action under” Section 2, it has been treated as an “open question” in lower courts.
The Current Challenge: Arkansas State Conference NAACP v. Arkansas Board of Apportionment
Taking a cue from Justice Gorsuch, a district court in Arkansas held in early 2022 that there is no private right of action under Section 2. The case involved a challenge to the redistricting in the Arkansas state legislature, but the parties never raised the issue of the private right of action. The district court on its own asked for further briefing and determined that neither text, structure, nor precedent suggests that the VRA provides for a private remedy for Section 2. Without a private remedy, the district court reasoned, there could be no private right of action for Section 2. That decision was appealed to the U.S. Court of Appeals for the Eighth Circuit, which heard arguments on January 11, 2023.
One major issue is the effect of Supreme Court precedent, and whether any prior cases actually addressed whether a private right of action exists. Those arguing against a private right of action suggest that any prior statements by the Supreme Court were non-binding because the issue was never explicitly challenged. Still, Section 2 seems different than other cases where a legal proposition was assumed but not decided. It is common in the context of qualified immunity for a court to assume the existence of a constitutional right, but nevertheless hold that it was not clearly established, foreclosing relief for plaintiffs. In those cases, it does not automatically follow that the court held that a certain constitutional right exists because the plaintiff would lose regardless. With respect to Section 2, however, private plaintiffs have prevailed on their claims, and they would not have been entitled to relief without a right of action. Therefore, any statements regarding the availability of a private cause of actions are binding because they were necessary to the court’s holding. Plaintiffs in the Arkansas case argued as much.
Those arguing against a private right of action also point out that the VRA expressly gives the Attorney General the right to sue but does not expressly do so for private litigants. It would seem odd to assume Congress intended for private litigants to be able to bring suit without also making their right explicit when they made the right of the Attorney General explicit. However, as plaintiffs and the federal government argued, dating back to Reconstruction, voting rights claims have traditionally been private claims; thus, it seems likely that Congress was adding an additional avenue for litigation under the Attorney General, not abrogating the prior practice. This is consistent with statutory interpretation in other contexts, where we do not read statutes and court rules to abrogate prior longstanding practices from the common law, unless they specifically so state.
Additionally, the district court’s treatment of Section 2 parallels the Supreme Court’s treatment of Bivens claims, where courts have implied a right for individuals to sue federal officers who violate the Constitution. The Supreme Court has curtailed the availability of Bivens in recent years, reasoning that creating causes of action are a distinctly legislative responsibility. The district court’s opinion in the statutory context of Section 2 is consistent with this trend, and indeed some judges at oral argument asked why they should not move in the direction the Supreme Court has taken in Bivens claims and refuse to imply a cause of action.
Still, even though many now think of creating causes of action as a singularly legislative responsibility, the VRA was passed in the 1960s when it was the norm to for courts to imply causes of action. The Congress of that era likely anticipated implied causes of action and could have been less careful about explicitly providing for the right. Moreover, as the plaintiffs here argued, implying a cause of action would not intrude into the legislative power because Congress has consistently reauthorized the VRA over several decades, often responding to decisions of the courts, but never indicated that implying a private right of action was inappropriate.
How could the case be resolved? Some believe after oral argument that the Eighth Circuit panel is inclined to hold that no private right of action exists. Of course, Congress could pass a law amending Section 2 to expressly provide for a private right of action, though it seems unlikely given the current political situation. It is also possible that the plaintiffs could raise their Section 2 claim under 42 U.S.C. § 1983, a federal law that provides for a private right of action against state officials for violations of constitutional rights, because the Supreme Court has held that Section 2 enforces the requirements of the Fifteenth Amendment. The plaintiffs could amend their lawsuit to include that claim here, though it remains to be seen if they will be allowed. Finally, the Eighth Circuit could find that the defendants waived their right to challenge whether there was a private right of action under Section 2 because the district court raised the issue on its own. If it did so, this issue would be reserved for another day.
The Implications of Holding That There is No Private Right of Action to Enforce Section 2
In any case, the implications of the district court’s ruling, if upheld, could be widespread. Private individuals could no longer sue under Section 2, and all enforcement would be left to the Department of Justice. As a practical matter, the Department of Justice’s Civil Rights Division does not have adequate staffing to handle all possible Section 2 claims throughout the country. That would mean that many claims would go un-litigated, and those state laws which would have violated Section 2 would be allowed to stay in effect. States would be empowered to dilute the votes of historically underrepresented groups, and only the worst of the worst plans would be challenged given the limited resources. And more generally, the ability of the VRA to address the problems for which it was created would be significantly hampered, as there would still be no Section 5 litigation and minimal Section 2 litigation. While Fourteenth and Fifteenth Amendment claims may still be available, such claims require proof of discriminatory intent, which is often a large burden for plaintiffs to prove.
Most of all, however, a holding barring private rights of action under Section 2 would constitute a significant shift in the United States’ ability to right the wrongs of its past. Private claims under Section 2 have been the norm for over half a century, and whatever one thinks of the merits of this case, it would be a shock to the system to foreclose Section 2 to private plaintiffs.
Sources:
42 U.S.C. § 1983.
Arkansas Legislative Redistricting Challenge, DEMOCRACY DOCKET (last visited Jan. 29, 2023).
Ark. State Conference NAACP v. Ark. Bd. of Apportionment, 586 F. Supp. 3d 893 (E.D. Ark. 2022).
Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2350 (2021) (Gorsuch, J. concurring).
City of Mobile v. Bolden, 446 U.S. 55 (1980).
Egbert v. Boule, 142 S. Ct. 1793 (2022).
GEO. UNIV. L. CTR., A GUIDE TO READING, INTERPRETING, AND APPLYING STATUTES (2017).
Oral Argument, Ark. State Conference NAACP v. Ark. Bd. of Apportionment (No. 22-1395), http://media-oa.ca8.uscourts.gov/OAaudio/2023/1/221395.MP3.
Shelby County v. Holder, 570 U.S. 529 (2013).
The Use of Section 2 to Secure Fair Representation, BRENNAN CTR. FOR JUSTICE (Aug. 13, 2021).
Tierney Sneed, Another ‘radical’ change to the Voting Rights Act could reach the Supreme Court, CNN (Jan. 11, 2023).
Washington v. Davis, 426 U.S. 229 (1976).